In the cases of CD v ST and Z v A Government Department and the Board of Management of a Community School, the Court of Justice of the European Union clarified the protections and benefits that should be afforded to mothers having children through surrogacy arrangements ( “intended mothers”) and, in particular, whether intended mothers  should benefit from the same minimum European protection provided to  pregnant/ birth mothers.

The cases concerned, respectively, a hospital employee in the UK and a teacher in Ireland, each of whom had a child by a surrogate mother as they were unable to have children themselves. Both brought claims of discrimination in their local tribunals which were referred to the CJEU. The key findings of the CJEU were as follows:

  • The Pregnant Workers’ Directive does not require a member state to allow a mother who has had a baby through a surrogacy arrangement to take maternity leave or its equivalent.
  • A refusal to grant paid leave to an intended mother did not (in these cases) amount to sex and/or disability discrimination.